42 PROCTOR | November 2016
Parenthood
from de facto’s
egg donation
Children – artificial conception – egg donor
held to be a parent
In Clarence & Crisp [2016] FamCAFC 157
(18 August 2016) the Full Court (Thackray,
Ainslie-Wallace & Aldridge JJ) dismissed with
costs the birth mother’s appeal against a
parenting order made in respect of her daughter
who was conceived with an egg supplied by the
respondent by a medical procedure performed
on 11 July 2011, the court saying (at [3]):
“If the parties were in a de facto relationship
on that day [of conception] then they were
both the child’s ‘parents’ for the purposes
of [s60H of] the Family Law Act 1975...”
At first instance, Berman J found that while
the parties were living separately at the
date of conception they were in a de facto
relationship, so the respondent was a parent.
It was common ground that the parties had
commenced a de facto relationship in 2004 but
the appellant argued that they separated on
21 March 2011 when the respondent left the
home, whereas the respondent argued that she
continued to spend four or five nights a week
at the birth mother’s home until August 2011.
The Full Court said ([12]-[13]):
“His Honour found that although the
respondent had not stayed overnight as often
as alleged, she was nevertheless a ‘frequent
visitor’ to the parties’ former home. ( ... )”
The Full Court continued (at [18]-[19]):
“His Honour found that in the period from
6 May 2011 to 26 July 2011 there had been
850 text messages between the parties on
topics which ranged ‘from the mundane to
the highly personal’ ... ”
The Full Court concluded (at [27]-[28]):
“Although we conclude there is no basis for
complaint by the appellant, we nevertheless
consider that his Honour misdirected himself
... when he posed the question of whether
the parties had ‘separated’. While that is a
question which must be asked in the case
of a married couple seeking a divorce, it is a
potentially misleading question in cases such
as the present, where the issue is whether a
de facto relationship existed at a particular
point in time. However, his Honour ultimately
answered the real question he was required
to consider when he found ... that ‘the de
with Robert Glade-Wright
facto relationship endured and continued
beyond the date of conception’.
Accordingly, we accept the submission
of senior counsel for the respondent that
nothing turns on the trial judge’s discussion
of whether the parties had ‘separated’ ...”
Children – contravention – father loses
appeal for costs against mother found in
‘serious contravention’ of parenting order
In Roffe & Huie [2016] FamCAFC 166
(19 August 2016) Murphy J (sitting in the
appellate jurisdiction of the Family Court
of Australia) dismissed the father’s appeal
against an order that he and the mother
pay their own costs of his successful
contravention application. While initially
contesting the application, the mother
admitted her contravention of a parenting
order by withholding the child from time to time
without reasonable excuse. At first instance
Judge Demack found the mother’s conduct to
have been “a serious contravention of children’s
orders” ([3]) and placed her on a bond for
12 months, conditional on her complying with
court orders and attending a family consultant.
Murphy J held that the trial judge was not in
error in ordering the parties to pay their own
costs as the case came within the exception
to the mandatory provision in s70NFB(1)(a)
of the Family Law Act where “the court is
satisfied that it would not be in the best
interests of the child concerned to make
[an order that the person who committed
a contravention pay the applicant’s costs]”.
Murphy J concluded at [31] that there was
“sufficient evidence for the trial judge to
find that the mother was in poor financial
circumstances and potentially could not
satisfy a costs order without the sale of her
home [in Australia]”, the father having argued
at [34] that the mother could realise the
property she owned in south-east Asia.
Property – injunctions made restraining
guardians of family trust from changing
the terms of its deed of settlement
In Josselyn and Ors [2016] FamCA 557
(8 July 2016) Watts J granted Ms J injunctions
in respect of her former de facto partner’s
control of a family trust. After separation
Mr J changed the appointment power from
his business partner to his brother then added
two children of his first relationship as directors
of the corporate trustee (he having previously
been its sole director). Mr J had also begun
arguing that the trust’s assets were no longer
relationship property. Ms J’s case was that
Mr J’s post-separation dealings evidenced risk
of an intention to defeat her property claim.
After referring to the relevant statutory provisions,
Watts J (at [13]) cited Mullen & De Bry [2006]
FamCA 1380 in which the Full Court said that
“[i]n some cases, the possibility (based on
some evidence) of an intention or scheme
may, with other factors, be sufficient to establish
the probability of an objective risk of disposal
with the intent to defeat an order (Original
emphasis)”. Watts J continued (at [46]-[47]):
“Even if a benign view was taken of all the
changes the husband has made since
separation to the roles he has in various
entities, the expressed view by the husband’s
lawyers in the letter of 5 May 2016 is some
evidence of the possibility of an intention to
put assets outside the reach of the de facto
wife by the restructuring he has undertaken.
That apparent risk may ultimately turn out to
be without any foundation. However, there
is no downside in making the orders sought
by the wife pending further order to guard
against that risk.”
Watts J concluded at [51]:
“Senior counsel for the husband said that
in respect of the order seeking restraint of
distribution of income that the operation of
those orders ... would create the difficulty of
retained profits in the trust and the taxation
consequences flowing from it. ... I make no
order preventing the trustees from distributing
income. It is unlikely that income earnt on
the investments of the trust in one year,
if dissipated, is something that could not
be properly adjusted at the final hearing in
circumstances where the wife seeks one
half of the overall assets held by the parties.
However, the injunctive order, as it applies to
the corpus of the trust, is a different matter.”
Robert Glade-Wright is the founder and senior editor
of The Family Law Book, a one-volume looseleaf and
online family law service (thefamilylawbook.com.au).
He is assisted by Queensland lawyer Craig Nicol,
who is a QLS accredited specialist (family law).
Family law
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